Webster v. New Jersey Department of Corrections

On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2009

Before Judges Lyons and J. N. Harris.

In this case, Clayton Webster (Webster), an inmate at New Jersey State Prison (NJSP), appeals from a final decision of the New Jersey Department of Corrections (DOC) upholding the imposition of prison discipline against him. We affirm.

On August 3, 2008, Webster had a contact visit in the North Compound Visit Hall. Afterwards, at approximately 11:40 a.m., Senior Corrections Officer (SCO) Brennan conducted a strip search of Webster. During the strip search, SCO Brennan ordered Webster to lift up his testicles, and he complied. Webster asserts SCO Brennan then ordered him to stick a finger in his mouth and lift up his tongue. Webster claims he replied that he could not do this because his hands were dirty. SCO Brennan denies ordering Webster to put his finger in his mouth.

According to SCO Brennan, Webster was twice ordered to bend at the waist and spread his buttocks, but both times Webster refused. SCO Bezek, Correction Officer Recruit (COR) Dzurkoc, and COR Lopez observed Webster's refusals and subsequently filed reports confirming their observations. Inmate Paul Reid was also present during the incident, and he claimed that Webster only refused SCO Brennan's order to stick his finger in his mouth after touching his testicles.

SCO Brennan then notified his supervisor, Sergeant Barnes, that Webster had refused to comply with his orders. Sgt. Barnes told Webster to get dressed and be seated until the other inmates' strip searches were completed. After the searches were finished and the other inmates were no longer present, Sgt. Barnes ordered Webster to strip, bend over at the waist, and expose his anal cavity. Webster removed his clothes but, again, refused to bend over and separate his buttocks.

Webster was then ordered to get dressed, handcuffed, and escorted to the strip frisk room, where he complied with all orders for the strip search. Based on his refusals to comply with the strip search orders, Webster was charged with prohibited act *.708, refusal to submit to a search. N.J.A.C. 10A:4-4.1. Webster subsequently requested a counsel substitute and pled not guilty.

The disciplinary hearing was postponed from August 6, 2008, at counsel substitute's request, for an opportunity to fully examine the case. On the same day, the hearing officer submitted a request to the DOC investigator for any videotape of the incident.

On August 8, 2008, the disciplinary hearing was postponed based on counsel substitute's requests to view the videotape, to confront adverse witnesses, and to examine Webster by polygraph. Webster asserted that by submitting to a polygraph, he could prove that SCO Brennan lied and wrote a false charge.

The hearing officer, counsel substitute, and Webster viewed the videotape evidence produced that day. The videotape did not have an audio component. Further, it was only a tape of the search ordered by Sgt. Barnes. After viewing the videotape, the hearing officer entered his findings on the record that Webster did not effectively comply with the order to spread his buttocks. The hearing officer also stated that Webster's lengthy hair style impacted the view. Webster noted that footage of the initial strip searches by SCO Brennan was missing, and the DOC admits this missing footage is no longer available. In response to a request for additional videotape footage, the DOC investigator received an e-mail that stated in pertinent part, "[d]ue to the time limitation of the video recorder, your request to receive additional video footage could not be processed due to the time/date parameters of the date of the incident expired."

On August 11, 2008, the hearing was further postponed for case review. Webster's request for a polygraph was denied that day by the prison administrator in a memorandum that explained:

1) There are no issues of credibility in regards to the reporting officer or through investigation that was ...

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